Pending before the Court are Plaintiffs' motion for summary judgment and Defendant's six motions for summary judgment against each class representative. The matter came on for hearing on February 19, 2010. Alexandra Manbeck and Hung Le appeared on behalf of Plaintiffs. Dianne Schweinner and Raven Norris appeared on behalf of Defendant. For the reasons set forth below, the Court denies Plaintiffs' motion for summary judgment and grants Defendant's motions for summary judgment.

I. PROCEDURAL BACKGROUND

On October 12, 2004, Plaintiffs filed a complaint against the Commissioner of the Social Security Administration ("SSA") alleging that Administrative Law Judge ("ALJ") Steven New was biased against applicants who sought social security benefits.*fn1 (Doc. 1.) Steven New served as an ALJ for the SSA for approximately six years. He separated from the SSA in May 2003 and is now deceased. This Court has jurisdiction over the matter pursuant to the Social Security Act, 42 U.S.C. § 405(g). (April 11, 2005 Order at 4-6.) The case previously was assigned to the Honorable Napolean A. Jones Jr., who decided many of the procedural motions.

The original complaint named Phuong Doan as the class representative. Plaintiffs thereafter sought to amend the complaint to add Jose Hernandez, Dieu Lam, and Hai Huynh as class representatives. (Doc. 21.) On January 23, 2006, Judge Jones granted the motion as to Jose Hernandez only. (Jan. 23, 2006 Order.) On August 21, 2006, the matter was certified as a class action, and on March 5, 2007, the class definition was modified as follows:

All claimants for Title II Social Security Disability Benefits or Title XIV Supplemental Security Income whose claims had been assigned to ALJ New and have had their claims denied or dismissed by ALJ New, except that the class shall not include any person who has prosecuted any action in federal court in which the issue of ALJ New's alleged bias or predisposition to deny claims was addressed and determined.

(March 5, 2007 Order at 10.)

On January 29, 2008, Judge Jones dismissed Plaintiffs Phuong Doan and Jose Hernandez as class representatives on res judicata grounds. (Jan. 29, 2008 Order at 8-9.) On April 9, 2009, Judge Jones granted Plaintiffs' motion for leave to file a Second Amended Complaint ("SAC") and add additional class representatives. (Doc. 185.) Currently, the named class representatives are: Ethel Gutierrez, Karen Kraintz, Hoa Nguyen, Shelby Mittner, Sandor Hejja, and Vien Mai. They represent a class of approximately 886 applicants, all of whom were denied social security benefits by ALJ New. On April 16, 2009, the case was reassigned to this Court.

Plaintiffs allege that ALJ New was biased against Title II and Title XIV applicants and was predisposed to deny as many of their claims as possible. (SAC ¶ 2.) Plaintiffs allege the ALJ used improper procedural devices and routinely ignored the law in order to deny claims. (Id.) Plaintiffs further allege that ALJ New: (1) questioned applicants in a leading manner to obtain uninformed admissions and routinely screamed and yelled at claimants; (2) used inordinate time to cross-examine claimants, thereby precluding counsel from developing the record and their client's testimony; (3) interrupted expert witnesses and family members who were giving testimony favorable to the claimant; (4) disparaged claimants' treating physicians and employed unqualified experts; (5) omitted favorable evidence from written opinions; (6) routinely found claimants not credible; (7) accused claimants of malingering; (8) delayed resolution of cases that were favorable to claimants; (9) debased and intimidated claimants and their attorneys; (10) created an atmosphere of fear for claimants; and (11) routinely ignored the law in order to deny valid claims. (Id. at ¶ 5(i)-(xi).)

Through this litigation, Plaintiffs seek a declaration that ALJ New was biased against the class and that Plaintiffs were deprived of their right to a fair hearing before an impartial judge. Plaintiffs seek new hearings on all their social security applications. (Id. at 9.)

The SSA application history of each class representative is relevant to the issues addressed in this Order. The following is a brief summary of each representative's history before the SSA.

Ethel Gutierrez. Ethel Gutierrez filed her first application for disability insurance benefits on February 3, 1998. The application was denied by the Agency. (Anderson Decl. ¶ 3; Def. Ex. L.) She filed another application on October 22, 1999, alleging a disability onset date of April 16, 1999. (Zuroff Decl. ¶ 4.) Gutierrez requested a hearing on the application, which was held on November 8, 2001, before ALJ New. (Def. Ex. M.) Gutierrez was represented by attorney Anthony DeLellis. (Id.) ALJ New denied her application on December 27, 2001. (Id.) Gutierrez appealed the decision, but at the same time filed a new application for disability benefits. The new application was filed on August 9, 2002, and was granted by the Agency. (Anderson Decl. ¶¶ 6-7.) The Appeals Council reviewed both ALJ New's initial denial, and the Agency's subsequent grant of benefits. (Def. Ex. N.) The Appeals Council expressed concern about the evidence relied on for the grant of the 2002 application and thus, ordered further proceedings to determine the exact nature of Gutierrez' mental impairments. (Id.) ALJ Carletti conducted a hearing on September 6, 2006, and issued a decision in favor of Gutierrez. (Def. Ex. O.) ALJ Carletti found that Guiterrez had mental impairments dating back to May 2, 2001, which combined with physical impairments to render Gutierrez unable to work. (Id. at 2.)

Hoa Nguyen. Hoa Nguyen filed an application for supplemental income on March 23, 2000. The application was denied, and Nguyen requested a hearing. A hearing was held in front of ALJ New on March 9, 2001, at which time Nguyen was represented by attorney Michael Earle. (Def. Ex. U.) ALJ New denied her application on August 6, 2001. (Id.) Nguyen appealed the decision, first to the Appeals Council and then to the district court. (Def. Exs. V & W.) Attorney Matty Sandoval represented Nguyen in the district court action, Nguyen v. Barnhart, 02cv0329 JM (LSP) (S.D. Cal. 2002). The court found that ALJ New's findings were supported by substantial evidence. (Def. Ex.

X.) Subsequently, Nguyen filed another application for benefits on May 3, 2005, which was denied by the agency. (Def. Ex. Y.) She filed a third application on May 31, 2005, which was granted due to her age. (Anderson Decl. ¶ 9.)

Karen Kraintz. Ms. Kraintz filed applications for disability and supplemental benefits in July 1995, which were denied by ALJ Durso. (Def. Ex. AE.) She filed another application which was denied by the Agency on June 18, 1999. (Def. Ex. AF.) On December 6, 2000 and January 12, 2001, Kraintz filed additional applications. ALJ New held a hearing on the applications on December 13, 2002. (Def. Ex. AI.) Kraintz was represented at the hearing by attorney Vincent Jackson. (Id.) ALJ New denied Kraintz' application on April 24, 2003. (Id.) Kraintz appealed the decision, first to the Appeals Council and then to the district court. (Def. Exs. AJ, AK.) Attorney Manuel Serpa represented Kraintz in the district court action, Kraintz v. Barnhart, 04cv1708 DMS (JMA) (S.D. Cal. 2004). The court found that ALJ New's findings were supported by substantial evidence. (Def. Ex. AL.) Kraintz filed another application on November 25, 2005. The application was initially denied, but then granted on reconsideration. (Anderson Decl. ¶ 8.)

Shelby Mittner. Ms. Mittner was a minor at the time of her applications, which were filed through her mother, Amy Garcia. She filed an application for supplemental income on September 24, 1996, which was denied. (Def. Ex. AT at 2.) She filed another application June 26, 2001, which was denied initially and on reconsideration. (Def. Exs. AR-AT.) She requested a hearing, and received one in front of ALJ New on October 2, 2002. (Def. Ex. AT.) Mittner was not represented by an attorney. (Id.) ALJ New denied Mittner's application on November 22, 2002. (Id.) Mittner appealed, both to the Appeals Council and the district court. (Def. Exs. AU-AV.) Attorney Mary Mitchell represented Mittner in the district court action, Mittner v. Barnhart, 03cv1143 W (JAH) (S.D. Cal. 2003.) In that matter, the SSA stipulated to remand Mittner's claim for a new hearing. (Def. Ex. AW.) The matter was heard on February 18, 2005, before ALJ Steinman. (Def. Ex. AX.) At the hearing, Mittner amended her disability onset date to January 31, 2003. (Id.) On March 23, 2005, ALJ Steinman issued a favorable decision using the amended disability onset date. (Id.)

Sandor Hejja. Sandor Hejja filed an application for disability benefits on April 11, 2001. The application was denied initially and on reconsideration, and Hejja requested a hearing. (Def. Exs. BEBG.) The hearing was held on April 19, 2002, before ALJ New. (Def. Ex. BG.) Hejja was not represented by an attorney. (Id.) ALJ New denied the application on June 25, 2002. (Id.) Hejja appealed, and the Appeals Council remanded the matter in light of new evidence. (Def. Ex. BH.) On March 3, 2003, ALJ Steinman conducted a telephonic hearing and ordered additional examinations. (Def. Ex. BI.) On August 25, 2003, ALJ Steinman again denied Hejja's claim. (Id.) Hejja appealed the decision, both to the Appeals Council and the district court. (Def. Exs. BJ, BM.) Attorney Mary Mitchell represented Hejja in the district court action, Hejja v. Barnhart, 04cv0141 JM (JFS) (S.D. Cal. 2004.) While that matter was pending, Hejja filed another application with SSA which was denied initially and on reconsideration. (Def. Exs. BK, BL.) In the district court action, the SSA stipulated to remand Hejja's claim. (Def. Ex. BN.) The SSA then consolidated Hejja's two applications, and the matters were heard by ALJ Steinman on May 3, 2005. (Def. Ex. BO.) Hejja, who continued to be represented by attorney Mary Mitchell, amended his disability onset date to May 1, 2001. (Id. at 2.) On June 6, 2005, ALJ Steinman issued a favorable decision using the amended disability onset date. (Id. at 4.)

Vien Mai. Vien Mai filed applications for supplemental security income on June 14, 1994 and January 14, 1999, respectively, both of which were denied by the Agency. (Zuroff Decl. ¶ 16.) On May 2, 2000, Mai filed another application for supplemental security benefits. (Id. at ¶ 17.) Mai had a hearing on that application in front of ALJ New on August 30, 2001, at which time she was represented by attorney Michael Earle. (Id. at 17; Def. Ex. C.) ALJ New denied Mai's application on November 26, 2001. (Def. Ex. C.) Mai did not appeal the decision. (Zuroff Decl. at ¶ 19.) On February 19, 2002, Mai filed another application, which was denied by the Agency. (Def. Ex. D.) On September 22, 2005, Mai filed yet another application for disability benefits. (Def. Ex. E.) It was denied by the Agency at the initial and reconsideration stages. She appealed the decision and thereafter attended a hearing in front of ALJ Godfrey, at which time she was represented by attorney Josephine Arno. (Id.) ALJ Godfrey issued a fully favorable decision, finding that Mai's condition had worsened since ALJ New's decision and that Mai was entitled to benefits with a disability onset date of September 22, 2005. (Id. at 1-2.)

III. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). There is no genuine issue of material fact when a party, after adequate time for discovery, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 325. A complete failure of proof of an essential element of a case renders all other facts immaterial. Id.

Summary judgment should be granted if the evidence is such that it would require a directed verdict for the moving party. Anderson, 477 U.S. at 251. When making its determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255. Rather, the judge's function is to determine whether there is a genuine issue for trial. Id. at 249. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id.

In light of Anderson and Celotex, it has been stated:

These cases, proceeding from the premise that Rule 56 is intended to avoid unnecessary trials, establish that the test of a dispute is whether a reasonable jury could find for the non-movant. That, in turn, means that the facts in the non-movant's opposition, if proved at trial, would have to be sufficient to support a verdict -- in other words, sufficient to survive a motion for directed verdict or judgment notwithstanding the verdict. In the absence of such a showing, a trial would be pointless.*fn2

B. Bias

Due process requires that hearings be conducted by an impartial adjudicator. Schweiker v. McClure, 456 U.S. 188, 195-196 (1982). Administrative law judges are presumed to be impartial. Id.; Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). The presumption can be rebutted by showing a conflict of interest or some other specific reason for disqualification. Schweiker, 456 U.S. at 195; Verduzco, 188 F.3d at 1089. The party challenging an ALJ's impartiality bears the burden of rebutting the presumption. Schweiker, 456 U.S. at 195; Verduzco, 188 F.3d at 1089.

Bias is not shown by "expressions of impatience, dissatisfaction, annoyance, [or] even anger." Rollins v. Massanari, 261 F.3d 853, 857-858 (9th Cir. 2001) (citing Liteky v. United States, 510 U.S. 540, 555-556 (1994)). Rather, bias is shown where the ALJ's conduct, in the context of the entire proceeding, is "so extreme as to display clear inability to render fair judgment." Id. Due process is not violated where, although isolated incidents are challenged, the record ...

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